I. A presentment, generally taken, is a very comprehensive
term; including not only presentments properly so called,
but also inquisitions of office, and indictments by a grand
jury. A presentment, properly speaking, is the notice taken
by a grand jury of any offence from their own knowledge
or observation, without any bill of indictment laid before
them at the suit of the king. As, the presentment of a nusance,
a libel, and the like; upon which the officer of the
court must afterwards frame an indictment, before the
party presented as the author can be put to answer it. An
inquisition of office is the act of a jury, summoned by the
proper officer to enquire of matters relating to the crown,
upon evidence laid before them. Some of these are in
themselves convictions, and cannot afterwards be traversed
or denied; and therefore the inquest, or jury, ought
to hear all that can be alleged on both sides. Of this nature
are all inquisitions of felo de se; of flight in persons accused
of felony; of deodands, and the like; and presentments of
petty offences in the sheriff's tourn or court-leet, whereupon
the presiding officer may set a fine. Other inquisitions
may be afterwards traversed and examined; as particularly
the coroner's inquisition of the death of a man,
when it finds any one guilty of homicide: for in such cases
the offender so presented must be arraigned upon this inquisition,
and may dispute the truth of it; which brings it
to a kind of indictment, the most usual and effectual
means of prosecution, and into which we will therefore
enquire a little more minutely.

II. An indictment is a written accusation of one or more
persons of a crime or misdemesnor, preferred to, and presented
upon oath by, a grand jury. To this end the sheriff
of every county is bound to return to every session of the
peace, and every commission of oyer and terminer, and of
general gaol delivery, twenty four good and lawful men of
the county, some out of every hundred, to enquire, present,
do, and execute all those things, which on the part of
our lord the king shall then and there be commanded
them. They ought to be freeholders, but to what amount
is uncertain: which seems to be casus omissus, and as
proper to be supplied by the legislature as the qualifications
of the petit jury; which were formerly equally vague
and uncertain, but are now settled by several acts of parliament.
However, they are usually gentlemen of the best
figure in the county. As many as appear upon this panel,
are sworn upon the grand jury, to the amount of twelve at
the least, and not more than twenty three; that twelve may
be a majority. Which number, as well as the constitution
itself, we find exactly described, so early as the laws of king
Ethelred. "Exeant seniores duodecim thani, et praefectus cum
eis, et jurent super sanctuarium quod eis in manus datur, quod
nolint ullum innocentem accusare, nec aliquem noxium celare."
In the time of king Richard the first (according to Hoveden)
the process of electing the grand jury, ordained by
that prince, was as follows: four knights were to be taken
from the county at large, who chose two more out of every
hundred; which two associated to themselves ten other
principal freemen, and those twelve were to answer concerning
all particulars relating to their own district. This
number was probably found too large and inconvenient;
but the traces of this institution still remain, in that some
of the jury must be summoned out of every hundred. This
grand jury are previously instructed in the articles of their
enquiry, by a charge from the judge who presides upon
the bench. They then withdraw, to sit and receive indictments,
which are preferred to them in the name of the
king, but at the suit of any private prosecutor; and they
are only to hear evidence on behalf of the prosecution: for
the finding of an indictment is only in the nature of an
enquiry or accusation, which is afterwards to be tried and
determined; and the grand jury are only to enquire upon
their oaths, whether there be sufficient cause to call upon
the party to answer it. A grand jury however ought to be
thoroughly persuaded of the truth of an indictment, so far
as their evidence goes; and not to rest satisfied merely with
remote probabilities: a doctrine, that might be applied to
very oppressive purposes.

The grand jury are sworn to enquire, only for the body
of the county, pro corpore comitatus; and therefore they cannot
regularly enquire of a fact done out of that county for
which they are sworn, unless particularly enabled by act of
parliament. And to so high a nicety was this matter antiently
carried, that where a man was wounded in one
county, and died in another, the offender was at common
law indictable in neither, because no complete act of felony
was done in any one of them: but by statute 2 & 3 Edw.
VI. c. 24. he is now indictable in the county where the
party died. And so in some other cases: as particularly,
where treason is committed out of the realm, it may be
enquired of in any county within the realm, as the king
shall direct, in pursuance of statutes 26 Hen. VIII. c.13.
35 Hen. VIII. c. 2. and 5 & 6 Edw. VI. c. 11. But, in general,
all offences must be enquired into as well as tried in
the county where the fact is committed.

When the grand jury have heard the evidence, if they
think it a groundless accusation, they used formerly to endorse
on the back of the bill, "ignoramus;" or, we know
nothing of it; intimating, that though the facts might possibly
be true, that truth did not appear to them: but now,
they assert in English, more absolutely, "not a true bill;"
and then the party is discharged without farther answer.
But a fresh bill may afterwards be preferred to a subsequent
grand jury. If they are satisfied of the truth of the
accusation, they then endorse upon it, "a true bill;" antiently,
"billa vera." The indictment is then said to be
found, and the party stands indicted. But, to find a bill,
there must at least twelve of the jury agree: for so tender
is the law of England of the lives of the subjects, that no
man can be convicted at the suit of the king of any capital
offence, unless by the unanimous voice of twenty four of
his equals and neighbours: that is, by twelve at least of the
grand jury, in the first place, assenting to the accusation;
and afterwards, by the whole petit jury, of twelve more,
finding him guilty upon his trial. But, if twelve of the
grand jury assent, it is a good presentment, though some
of the rest disagree. And the indictment, when so found,
is publicly delivered into court.

Indictments must have a precise and sufficient certainty.
By statute 1 Hen. V. c. 5. all indictments must set forth
the christian name, sirname, and addition of the state and
degree, mystery, town, or place, and the county of the offender:
and all this to identify his person. The time, and
place, are also to be ascertained, by naming the day, and
township, in which the fact was committed: though a mistake
in these points is in general not held to be material,
provided the time be laid previous to the finding of the
indictment, and the place to be within the jurisdiction of
the court. But sometimes the time may be very material,
where there is any limitation in point of time assigned for
the prosecution of offenders; as by the statute 7 Will. III.
c. 3. which enacts, that no prosecution shall be had for any
of the treasons or misprisions therein mentioned (except
an assassination designed or attempted on the person of
the king) unless the bill of indictment be found within
three years after the offence committed: and, in case of
murder, the time of the death must be laid within a year
and a day after the mortal stroke was given. The offence
itself must also be set forth with clearness and certainty:
and in some crimes particular words of art must be used,
which are so appropriated by the law to express the precise
idea which it entertains of the offence, that no other
words, however synonymous they may seem, are capable
of doing it. Thus, in treason, the facts must be laid to be
done, "treasonably, and against his allegiance;" antiently
"proditorie et contra ligeantiae suae debitum:" else the indictment
is void. In indictments for murder, it is necessary to
say that the party indicted "murdered," not "killed" or
"slew," the other; which till the late statute was expressed
in Latin by the word "murdravit." In all indictments for
felonies, the adverb "feloniously, felonice," must be used;
and for burglaries also, "burglariter," or in English, "burglariously:"
and all these to ascertain the intent. In rapes,
the word "rapuit," or "ravished," is necessary, and must
not be expressed by any periphrasis; in order to render
the crime certain. So in larcinies also, the words "felonice
cepit et asportavit, feloniously took and carried away," are
necessary to every indictment; for these only can express
the very offence. Also in indictments for murder, the
length and depth of the wound should in general be expressed,
in order that it may appear to the court to have
been of a mortal nature: but if it goes through the body,
then it's dimensions are immaterial, for that is apparently
sufficient to have been the cause of the death. Also where
a limb, or the like, is absolutely cut off, there such description
is impossible. Lastly, in indictments the value of the
thing, which is the subject or instrument of the offence,
must sometimes be expressed. In indictments for larcinies
this is necessary, that it may appear whether it be grand
or petit larciny; and whether entitled or not to the benefit
of clergy: in homicide of all sorts it is necessary; as the
weapon, with which it is committed, is forfeited to the king
as a deodand.

The remaining methods of prosecution are without any
previous finding by a jury, to fix the authoritative stamp
of verisimilitude upon the accusation. One of these, by the
common law, was when a thief was taken with the mainour,
that is, with the thing stolen upon him, in manu. For he
might, when so detected flagrante delicto, be brought into
court, arraigned, and tried, without indictment: as by the
Danish law he might be taken and hanged upon the spot,
without accusation or trial. But this proceeding was taken
away by several statutes in the reign of Edward the third:
though in Scotland a similar process remains to this day.
So that the only species of proceeding at the suit of the
king, without a previous indictment or presentment by a
grand jury, now seems to be that of information.

III. Informations are of two sorts; first, those which are
partly at the suit of the king, and partly at that of a subject;
and secondly, such as are only in the name of the
king. The former are usually brought upon penal statutes,
which inflict a penalty upon conviction of the offender,
one part to the use of the king, and another to the use of
the informer; and are a sort of qui tam actions, (the nature
of which was explained in a former volume) only carried
on by a criminal instead of a civil process: upon which I
shall therefore only observe, that by the statute 31 Eliz. c.
5. no prosecution upon any penal statute, the suit and
benefit whereof are limited in part to the king and in part
to the prosecutor, can be brought by any common informer
after one year is expired since the commission of
the offence; nor on behalf of the crown after the lapse of
two years longer; nor, where the forfeiture is originally
given only to the king, can such prosecution be had after
the expiration of two years from the commission of the
offence.

The informations, that are exhibited in the name of the
king alone, are also of two kinds: first, those which are
truly and properly his own suits, and filed ex officio by his
own immediate officer, the attorney general: secondly,
those in which, though the king is the nominal prosecutor,
yet it is at the relation of some private person or common
informer; and they are filed by the king's coroner and attorney
in the court of king's bench, usually called the master
of the crown-office, who is for this purpose the standing
officer of the public. The objects of the king's own
prosecutions, filed ex officio by his own attorney general,
are properly such enormous misdemesnors, as peculiarly
tend to disturb or endanger his government, or to molest
or affront him in the regular discharge of his royal functions.
For offences so high and dangerous, in the punishment
or prevention of which a moment's delay would be
fatal, the law has given to the crown the power of an immediate
prosecution, without waiting for any previous application
to any other tribunal. A power, so necessary, not
only to the ease and safety but even to the very existence
of the executive magistrate, was originally reserved in the
great plan of the English constitution, which has wisely
provided for the due preservation of all it's parts. The objects
of the other species of informations, filed by the master
of the crown-office upon the complaint or relation of a
private subject, are any gross and notorious misdemesnors,
riots, batteries, libels, and other immoralities of an atrocious
kind, not peculiarly tending to disturb the government
(for those are left to the care of the attorney general)
but which, on account of their magnitude or pernicious
example, deserve the most public animadversion. And
when an information is filed, either thus, or by the attorney
general ex officio, it must be tried by a petit jury of the
county where the offence arises: after which, if the defendant
be found guilty, he must resort to the court for his
punishment.

There can be no doubt but that this mode of prosecution,
by information (or suggestion) filed on record by the
king's attorney general, or by his coroner or master of the
crown-office in the court of king's bench, is as antient as
the common law itself. For as the king was bound to prosecute,
or at least to lend the sanction of his name to a
prosecutor, whenever a grand jury informed him upon
their oaths that there was a sufficient ground for instituting
a criminal suit; so, when these his immediate officers
were otherwise sufficiently assured that a man had committed
a gross misdemesnor, either personally against the
king or his government, or against the public peace and
good order, they were at liberty, without waiting for any
farther intelligence, to convey that information to the
court of king's bench by a suggestion on record, and to
carry on the prosecution in his majesty's name. But these
informations (of every kind) are confined by the constitutional
law to mere misdemesnors only: for, wherever any
capital offence is charged, the same law requires that the
accusation be warranted by the oath of twelve men, before
the party shall be put to answer it. And, as to those offences,
in which informations were allowed as well as indictments,
so long as they were confined to this high and
respectable jurisdiction, and were carried on in a legal and
regular course in his majesty's court of king's bench, the
subject had no reason to complain. The same notice was
given, the same process was issued, the same pleas were
allowed, the same trial by jury was had, the same judgment
was given by the same judges, as if the prosecution had
originally been by indictment. But when the statute 3 Hen.
VII. c. 1. had extended the jurisdiction of the court of
star-chamber, the members of which were the sole judges
of the law, the fact, and the penalty; and when the statute
11 Hen. VII. c. 3. had permitted informations to be
brought by any informer upon any penal statute, not extending
to life or member, at the assises or before the justices
of the peace, who were to hear and determine the
same according to their own discretion; then it was, that
the legal and orderly jurisdiction of the court of king's
bench fell into disuse and oblivion, and Empson and Dudley
(the wicked instruments of king Henry VII) by hunting
out obsolete penalties, and this tyrannical mode of prosecution,
with other oppressive devices, continually harassed
the subject and shamefully inriched the crown. The latter
of these acts was soon indeed repealed by statute 1 Hen.
VIII. c. 6. but the court of star-chamber continued in high
vigour, and daily increasing it's authority, for more than
a century longer; till finally abolished by statute
16 Car. I. c. 10.

Upon this dissolution the old common law authority of
the court of king's bench, as the custos morum of the nation,
being found necessary to reside somewhere for the peace
and good government of the kingdom, was again revived
in practice. And it is observable, that, in the same act of
parliament which abolished the court of star-chamber, a
conviction by information is expressly reckoned up, as one
of the legal modes of conviction of such persons, as should
offend a third time against the provisions of that statute.
It is true, sir Matthew Hale, who presided in this court
soon after the time of such revival, is said to have been no
friend to this method of prosecution: and, if so, the reason
of such his dislike was probably the ill use, which the master
of the crown-office then made of his authority, by permitting
the subject to be harrassed with vexatious informations,
whenever applied to by any malicious or
revengeful prosecutor; rather than his doubt of their legality,
or propriety upon urgent occasions. For the power
of filing informations, without any control, then resided in
the breast of the master: and, being filed in the name of
the king, they subjected the prosecutor to no costs, though
on trial they proved to be groundless. This oppressive use
of them, in the times preceding the revolution, occasioned
a struggle, soon after the accession of king William, to procure
a declaration of their illegality by the judgment of the
court of king's bench. But sir John Holt, who then presided
there, and all the judges, were clearly of opinion,
that this proceeding was grounded on the common law,
and could not be then impeached. And, in a few years
afterwards, a more temperate remedy was applied in parliament,
by statute 4 & 5 W. & M. c. 18. which enacts, that
the clerk of the crown shall not file any information without
express direction from the court of king's bench: and
that every prosecutor, permitted to promote such information,
shall give security by a recognizance of twenty
pounds (which now seems to be too small a sum) to prosecute
the same with effect; and to pay costs to the defendant,
in case he be acquitted thereon, unless the judge,
who tries the information, shall certify there was reasonable
cause for filing it; and, at all events, to pay costs, unless
the information shall be tried within a year after issue
joined. But there is a proviso in this act, that it shall not
extend to any other informations, than those which are
exhibited by the master of the crown-office: and, consequently,
informations at the king's own suit, filed by his
attorney general, are no way restrained thereby.

. . . . .

To arraign, is nothing else but to call the prisoner to the
bar of the court, to answer the matter charged upon him
in the indictment. The prisoner is to be called to the bar
by his name; and it is laid down in our antient books, that,
though under an indictment of the highest nature, he
must be brought to the bar without irons, or any manner
of shackles or bonds; unless there be evident danger of an
escape, and then he may be secured with irons. But yet in
Layer's case, A. D. 1722. a difference was taken between
the time of arraignment, and the time of trial; and accordingly
the prisoner stood at the bar in chains during the
time of his arraignment.

When he is brought to the bar, he is called upon by
name to hold up his hand: which, though it may seem a
trifling circumstance, yet is of this importance, that by the
holding up of his hand constat de persona, and he owns
himself to be of that name by which he is called. However
it is not an indispensable ceremony; for, being calculated
merely for the purpose of identifying the person, any
other acknowledgement will answer the purpose as well:
therefore, if the prisoner obstinately and contemptuously
refuses to hold up his hand, but confesses he is the person
named, it is fully sufficient.

Then the indictment is to be read to him distinctly in
the English tongue (which was law, even while all other
proceedings were in Latin) that he may fully understand
his charge. After which it is to be demanded of him,
whether he be guilty of the crime, whereof he stands indicted,
or not guilty. By the old common law the accessory
could not be arraigned till the principal was attainted; and
therefore, if the principal had never been indicted at all,
had stood mute, had challenged above thirty five jurors
peremptorily, had claimed the benefit of clergy, had obtained
a pardon, or had died before attainder, the accessory
in any of these cases could not be arraigned: for non
constitit whether any felony was committed or no, till the
principal was attainted; and it might so happen that the
accessory should be convicted one day, and the principal
acquitted the next, which would be absurd. However, this
absurdity could only happen, where it was possible, that a
trial of the principal might be had, subsequent to that of
the accessory: and therefore the law still continues, that
the accessory shall not be tried, so long as the principal
remains liable to be tried hereafter. But by statute I Ann.
c. 9. if the principal be once convicted, and before attainder,
(that is, before he receives judgment of death or outlawry)
he is delivered by pardon, the benefit of clergy, or
otherwise; or if the principal stands mute, or challenges
peremptorily above the legal number of jurors, so as never
to be convicted at all; in any of these cases, in which no
subsequent trial can be had of the principal, the accessory
may be proceeded against, as if the principal felon had
been attainted; for there is no danger of future contradiction.
And upon the trial of the accessory, as well after as
before the conviction of the principal, it seems to be the
better opinion, and founded on the true spirit of justice,
that the accessory is at liberty (if he can) to controvert the
guilt of his supposed principal, and to prove him innocent
of the charge, as well in point of fact as in point of law.

When a criminal is arraigned, he either stands mute, or
confesses the fact; which circumstances we may call incidents
to the arraignment: or else he pleads to the indictment,
which is to be considered as the next stage of proceedings.

. . . . .

V. The trial by jury, or the country, per patriam, is also
that trial by the peers of every Englishman, which, as the
grand bulwark of his liberties, is secured to him by the
great charter, "nullus liber homo capiatur, vel imprisonetur,
aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium
parium suorum, vel per legem terrae."

The antiquity and excellence of this trial, for the settling
of civil property, has before been explained at large. And
it will hold much stronger in criminal cases; since, in times
of difficulty and danger, more is to be apprehended from
the violence and partiality of judges appointed by the
crown, in suits between the king and the subject, than in
disputes between one individual and another, to settle the
metes and boundaries of private property. Our law has
therefore wisely placed this strong and twofold barrier, of
a presentment and a trial by jury, between the liberties of
the people, and the prerogative of the crown. It was necessary,
for preserving the admirable ballance of our constitution,
to vest the executive power of the laws in the
prince: and yet this power might be dangerous and destructive
to that very constitution, if exerted without check
or control, by justices of oyer and terminer occasionally
named by the crown; who might then, as in France or
Turkey, imprison, dispatch, or exile any man that was obnoxious
to the government, by an instant declaration, that
such is their will and pleasure. But the founders of the
English laws have with excellent forecast contrived, that no
man should be called to answer to the king for any capital
crime, unless upon the preparatory accusation of twelve or
more of his fellow subjects, the grand jury: and that the
truth of every accusation, whether preferred in the shape
of indictment, information, or appeal, should afterwards
be confirmed by the unanimous suffrage of twelve of his
equals and neighbours, indifferently chosen, and superior
to all suspicion. So that the liberties of England cannot but
subsist, so long as this palladium remains sacred and inviolate,
not only from all open attacks, (which none will be so
hardy as to make) but also from all secret machinations,
which may sap and undermine it; by introducing new and
arbitrary methods of trial, by justices of the peace, commissioners
of the revenue, and courts of conscience. And
however convenient these may appear at first, (as doubtless
all arbitrary powers, well executed, are the most convenient)
yet let it be again remembered, that delays, and little inconveniences
in the forms of justice, are the price that all
free nations must pay for their liberty in more substantial
matters; that these inroads upon this sacred bulwark of the
nation are fundamentally opposite to the spirit of our constitution;
and that, though begun in trifles, the precedent
may gradually increase and spread, to the utter disuse of
juries in questions of the most momentous concern.

What was said of juries in general, and the trial thereby,
in civil cases, will greatly shorten our present remarks, with
regard to the trial of criminal suits; indictments, informations,
and appeals: which trial I shall consider in the same
method that I did the former; by following the order and
course of the proceedings themselves, as the most clear
and perspicuous way of treating it.

When therefore a prisoner on his arraignment has
pleaded not guilty, and for his trial hath put himself upon
the country, which country the jury are, the sheriff of the
county must return a panel of jurors, liberos et legales homines,
de vicineto; that is, freeholders, without just exception,
and of the visne or neighbourhood; which is interpreted
to be of the county where the fact is committed. If
the proceedings are before the court of king's bench, there
is time allowed, between the arraignment and the trial, for
a jury to be impanelled by writ of venire facias to the sheriff,
as in civil causes: and the trial in case of a misdemesnor
is had at nisi prius, unless it be of such consequence as to
merit a trial at bar; which is always invariably had when
the prisoner is tried for any capital offence. But, before
commissioners of oyer and terminer and gaol delivery, the
sheriff by virtue of a general precept directed to him beforehand,
returns to the court a panel of forty eight jurors,
to try all felons that may be called upon their trial at
that session: and therefore it is there usual to try all felons
immediately, or soon, after their arraignment. But it is not
customary, nor agreeable to the general course of proceedings,
unless by consent of parties, to try persons indicted
of smaller misdemesnors at the same court in which
they have pleaded not guilty, or traversed the indictment.
But they usually give security to the court, to appear at the
next assises or session, and then and there to try the traverse,
giving notice to the prosecutor of the same.

In cases of high treason, whereby corruption of blood
may ensue, or misprision of such treason, it is enacted by
statute 7 W. III. c. 3. first, that no person shall be tried for
any such treason, except an attempt to assassinate the
king, unless the indictment be found within three years
after the offence committed: next, that the prisoner shall
have a copy of the indictment, but not the names of the
witnesses, five days at least before the trial; that is, upon
the true construction of the act, before his arraignment;
for then is his time to take any exceptions thereto, by way
of plea or demurrer: thirdly, that he shall also have a copy
of the panel of jurors two days before his trial: and, lastly,
that he shall have the same compulsive process to bring in
his witnesses for him, as was usual to compel their appearance
against him. And, by statute 7 Ann. c. 21. (which did
not take place till after the decease of the late pretender)
all persons, indicted for high treason or misprision
thereof, shall have not only a copy of the indictment, but
a list of all the witnesses to be produced, and of the jurors
impanelled, with their professions and places of abode, delivered
to him ten days before the trial, and in the presence
of two witnesses; the better to prepare him to make
his challenges and defence. But this last act, so far as it
affected indictments for the inferior species of high treason,
respecting the coin and the royal seals, is repealed by
the statute 6 Geo. III. c. 53. else it had been impossible to
have tried those offences in the same circuit in which they
are indicted: for ten clear days, between the finding and
the trial of the indictment, will exceed the time usually allotted
for any session of oyer and terminer. And no person
indicted for felony is, or (as the law stands) ever can be,
entitled to such copies, before the time of his trial.

When the trial is called on, the jurors are to be sworn,
as they appear, to the number of twelve, unless they are
challenged by the party.

Challenges may here be made, either on the part of the
king, or on that of the prisoner; and either to the whole
array, or to the separate polls, for the very same reasons
that they may be made in civil causes. For it is here at least
as necessary, as there, that the sheriff or returning officer
be totally indifferent; that where an alien is indicted, the
jury should be de medietate, or half foreigners; (which does
not indeed hold in treasons, aliens being very improper
judges of the breach of allegiance to the king) that on
every panel there should be a competent number of hundredors;
and that the particular jurors should be omni exceptione
majores; not liable to objection either propter honoris
respectum, propter defectum, propter affectum, or propter delictum.

Challenges upon any of the foregoing accounts are
stiled challenges for cause; which may be without stint in
both criminal and civil trials. But in criminal cases, or at
least in capital ones, there is, in favorem vitae, allowed to
the prisoner an arbitrary and capricious species of challenge
to a certain number of jurors, without shewing any
cause at all; which is called a peremptory challenge: a provision
full of that tenderness and humanity to prisoners,
for which our English laws are justly famous. This is
grounded on two reasons. 1. As every one must be sensible,
what sudden impressions and unaccountable prejudices
we are apt to conceive upon the bare looks and gestures
of another; and how necessary it is, that a prisoner
(when put to defend his life) should have a good opinion
of his jury, the want of which might totally disconcert him;
the law wills not that he should be tried by any one man
against whom he has conceived a prejudice, even without
being able to assign a reason for such his dislike.
2. Because, upon challenges for cause shewn, if the reason
assigned prove insufficient to set aside the juror, perhaps
the bare questioning his indifference may sometimes provoke
a resentment; to prevent all ill consequences from
which, the prisoner is still at liberty, if he pleases, peremptorily
to set him aside.

This privilege, of peremptory challenges, though
granted to the prisoner, is denied to the king by the statute
33 Edw. I. st. 4. which enacts, that the king shall challenge
no jurors without assigning a cause certain, to be tried and
approved by the court. However it is held, that the king
need not assign his cause of challenge, till all the panel is
gone through, and unless there cannot be a full jury without
the persons so challenged. And then, and not sooner,
the king's counsel must shew the cause: otherwise the juror
shall be sworn.

The peremptory challenges of the prisoner must however
have some reasonable boundary; otherwise he might
never be tried. This reasonable boundary is settled by the
common law to be the number of thirty five; that is, one
under the number of three full juries. For the law judges
that five and thirty are fully sufficient to allow the most
timorous man to challenge through mere caprice; and that
he who peremptorily challenges a greater number, or
three full juries, has no intention to be tried at all. And
therefore it dealt with one, who peremptorily challenges
above thirty five, and will not retract his challenge, as with
one who stands mute and refuses his trial; by sentencing
him to the peine forte et dure in felony, and by attainting
him in treason. And so the law stands at this day with regard
to treason, of any kind.

But by statute 22 Hen. VIII. c. 14. (which, with regard
to felonies, stands unrepealed by statute 1 & 2 Ph. & Mar.
c. 10.) by this statute, I say, no person, arraigned for felony,
can be admitted to make any more than twenty peremptory
challenges. But how if the prisoner will peremptorily
challenge twenty one? what shall be done? The old
opinion was, that judgment of peine forte et dure should be
given, as where he challenged thirty six at the common
law: but the better opinion seems to be, that such challenge
shall only be disregarded and overruled. Because,
first, the common law doth not inflict the judgment of
penance for challenging twenty one, neither doth the statute
inflict it; and so heavy a judgment shall not be imposed
by implication. Secondly, the words of the statute are,
"that he be not admitted to challenge more than twenty;"
the evident construction of which is, that any farther challenge
shall be disallowed or prevented: and therefore,
being null from the beginning, and never in fact a challenge,
it can subject the prisoner to no punishment; but
the juror shall be regularly sworn.

If, by reason of challenges or the default of the jurors,
a sufficient number cannot be had of the original panel, a
tales may be awarded as in civil causes, till the number of
twelve is sworn, "well and truly to try, and true deliverance
make, between our sovereign lord the king, and the prisoner
whom they have in charge; and a true verdict to give,
according to their evidence."

When the jury is sworn, if it be a cause of any consequence,
the indictment is usually opened, and the evidence
marshalled, examined, and enforced by the counsel for
the crown, or prosecution. But it is a settled rule at common
law, that no counsel shall be allowed a prisoner upon
his trial, upon the general issue, in any capital crime, unless
some point of law shall arise proper to be debated. A
rule, which (however it may be palliated under cover of
that noble declaration of the law, when rightly understood,
that the judge shall be counsel for the prisoner; that is,
shall see that the proceedings against him are legal and
strictly regular) seems to be not at all of a piece with the
rest of the humane treatment of prisoners by the English
law. For upon what face of reason can that assistance be
denied to save the life of a man, which yet is allowed him
in prosecutions for every petty trespass? Nor indeed is it
strictly speaking a part of our antient law: for the Mirrour,
having observed the necessity of counsel in civil suits, "who
know how to forward and defend the cause, by the rules
of law and customs of the realm," immediately afterwards
subjoins; "and more necessary are they for defence upon
indictments and appeals of felony, than upon other venial
causes." And, to say the truth, the judges themselves are
so sensible of this defect in our modern practice, that they
seldom scruple to allow a prisoner counsel to stand by him
at the bar, and instruct him what questions to ask, or even
to ask questions for him, with respect to matters of fact:
for as to matters of law, arising on the trial, they are intitled
to the assistance of counsel. But still this is a matter of too
much importance to be left to the good pleasure of any
judge, and is worthy the interposition of the legislature;
which has shewn it's inclination to indulge prisoners with
this reasonable assistance, by enacting in statute 7 W. III.
c. 3. that persons indicted for such high treason, as works a
corruption of the blood, or misprision thereof, may make
their full defence by counsel, not exceeding two, to be
named by the prisoner and assigned by the court or judge:
and this indulgence, by statute 20 Geo. II. c. 30. is extended
to parliamentary impeachments for high treason,
which were excepted in the former act.

. . . . .

Lastly, it was an antient and commonly received practice,
(derived from the civil law, and which also to this day
obtains in the kingdom of France) that, as counsel was not
allowed to any prisoner accused of a capital crime, so neither
should he be suffered to exculpate himself by the testimony
of any witnesses. And therefore it deserves to be
remembered, to the honour of Mary I, (whose early sentiments,
till her marriage with Philip of Spain, seem to
have been humane and generous) that when she appointed
sir Richard Morgan chief justice of the commonpleas,
she injoined him, "that notwithstanding the old error,
which did not admit any witness to speak, or any other
matter to be heard, in favour of the adversary, her majesty
being party; her highness' pleasure was, that whatsoever
could be brought in favour of the subject should be admitted
to be heard: and moreover, that the justices should
not persuade themselves to sit in judgment otherwise for
her highness than for her subject." Afterwards, in one
particular instance (when embezzling the queen's military
stores was made felony by statute 31 Eliz. c. 4.) it was provided
that any person, impeached for such felony, "should
be received and admitted to make any lawful proof that
he could, by lawful witness or otherwise, for his discharge
and defence:" and in general the courts grew so heartily
ashamed of a doctrine so unreasonable and oppressive,
that a practice was gradually introduced of examining witnesses
for the prisoner, but not upon oath: the consequence
of which still was, that the jury gave less credit to
the prisoner's evidence, than to that produced by the
crown. Sir Edward Coke protests very strongly against this
tyrannical practice: declaring that he never read in any act
of parliament, book-case, or record, that in criminal cases
the party accused should not have witnesses sworn for
him; and therefore there was not so much as scintilla juris
against it. And the house of commons were so sensible of
this absurdity, that, in the bill for abolishing hostilities between
England and Scotland, when felonies committed by
Englishmen in Scotland were ordered to be tried in one of
the three northern counties, they insisted on a clause, and
carried it against the efforts of both the crown and the
house of lords, against the practice of the courts in England,
and the express law of Scotland, "that in all such
trials, for the better discovery of the truth, and the better
information of the consciences of the jury and justices,
there shall be allowed to the party arraigned the benefit of
such credible witnesses, to be examined upon oath, as can
be produced for his clearing and justification." At length
by the statute 7 W. III. c. 3. the same measure of justice
was established throughout all the realm, in cases of treason
within the act: and it was afterwards declared by statute
1 Ann. st. 2. c. 9. that in all cases of treason and felony,
all witnesses for the prisoner should be examined upon
oath, in like manner as the witnesses against him.

When the evidence on both sides is closed, the jury cannot
be discharged till they have given in their verdict; but
are to consider of it, and deliver it in, with the same forms,
as upon civil causes: only they cannot, in a criminal case,
give a privy verdict. But an open verdict may be either general,
guilty, or not guilty; or special, setting forth all the
circumstances of the case, and praying the judgment of
the court, whether, for instance, on the facts stated, it be
murder, manslaughter, or no crime at all. This is where
they doubt the matter of law, and therefore chuse to leave
it to the determination of the court; though they have an
unquestionable right of determining upon all the circumstances,
and finding a general verdict, if they think proper
so to hazard a breach of their oaths: and, if their verdict
be notoriously wrong, they may be punished and the verdict
set aside by attaint at the suit of the king; but not at
the suit of the prisoner. But the practice, heretofore in
use, of fining, inprisoning, or otherwise punishing jurors,
merely at the discretion of the court, for finding their verdict
contrary to the direction of the judge, was arbitrary,
unconstitutional and illegal: and is treated as such by sir
Thomas Smith, two hundred years ago; who accounted
"such doings to be very violent, tyrannical, and contrary to
the liberty and custom of the realm of England." For, as
sir Matthew Hale well observes, it would be a most unhappy
case for the judge himself, if the prisoner's fate depended
upon his directions:--unhappy also for the prisoner;
for, if the judge's opinion must rule the verdict, the
trial by jury would be useless. Yet in many instances,
where contrary to evidence the jury have found the prisoner
guilty, their verdict hath been mercifully set aside,
and a new trial granted by the court of king's bench; for
in such case, as hath been said, it cannot be set right by
attaint. But there hath yet been no instance of granting a
new trial, where the prisoner was acquitted upon the first.

If the jury therefore find the prisoner not guilty, he is
then for ever quit and discharged of the accusation; except
he be appealed of felony within the time limited by law.
But if the jury find him guilty, he is then said to be convicted
of the crime whereof he stands indicted. Which conviction
may accrue two ways; either by his confessing the
offence and pleading guilty; or by his being found so by
the verdict of his country.